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The case: State v Walter L. Johnson
Case no.: 24AP79
Filed in: District IV Court of Appeals
Circuit Judge: John Hyland, Dane County
Filing Attorneys: Nicholas DeSantis
Title: Assistant attorney general
Law firm / agency: Wisconsin Department of Justice
"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Walter Johnson tested positive for methamphetamine after driving 130 mph, going airborne into oncoming traffic, and killing a child.
He was charged with vehicular homicide with a detectable amount of a controlled substance in his blood; operating on a suspended license causing death; vehicular injury with a detectable amount of controlled substance in his blood; and first-degree reckless homicide.
Johnson challenged the two controlled substances counts, Assistant Attorney General Nicholas DeSantis wrote in his appellate brief. Johnson's challenge argued that there are two types of methamphetamine and one of them, levomethamphetamine, known to its friends as L-meth, can be sold over the counter in some nasal inhalers.
Its more harmful cousin, dextromethamphetamine, or D-meth, is the stuff causing so much havoc in so many communities.
L-meth is exempt from regulation under the uniform controlled substances chapter of state law, Chapter 961, because of its legitimate purposes, DeSantis wrote.
Johnson argued that this exemption changes the meaning of “methamphetamine,” as used in the definition of a “restricted controlled substance,” to refer only to ... D-meth. The test results of the (Johnson's) now-destroyed blood sample did not state which isomer was present in Johnson’s blood.
The state does not have the equipment needed to tell the difference between the two methamphetamines.
However, both types of meth are illegal under the state's driving and criminal statutes, which are separate from the uniform controlled substances law, DeSantis wrote. Chapter 340 governs driving; and chapter 967 covers criminal laws.
Dane County Circuit Judge John Hyland, after consulting the statutes and legislative history, agreed that L-meth is not a restricted controlled substance.
While the court did not dismiss the case, it held that the State would be required to prove Johnson’s blood sample (which has now been disposed of in the normal course of business) contained D-meth as opposed to L-meth.
Hyland erred, DeSantis said.
The fact that L-meth can be lawfully sold in some nasal inhalers does not change the definition of meth-amphetamine,” which remains a restricted controlled substance in all its forms. Therefore, the state need not prove that Johnson’s blood sample contained D-methamphetamine.
During an evidentiary hearing Johnson called a forensic toxicologist, James Oehldrich, who testified that some two of 13 study participants who used Vicks VapoInhalers tested positive for small amounts of meth. Another medication, selgiline, which is sometimes prescribed to people with Parksinson's, can also produce a detectable amount of L-meth in the blood, Oehldrich said.
Amy Miles, the director of forensic toxicology for the Wisconsin State Laboratory of Hygiene, testified that the state hygiene lab often could not detect L-meth levels that were as low as those recorded in a VapoInhaler test involving 12 individuals given up to four times the recommended dose.
She also said that, in her experience, other states do not tend to differentiate between L-meth and D-meth.
It is the lab's policy, due to the large volume of material it receives, to keep blood samples for six months after a final report is issued, she said. It will, however, keep the samples longer if requested to do so by the defense or the judge.
Johnson's lawyer did not inquire about the sample for more than a year after the final report was completed, Miles said.
The state, after the court's ruling, sought permission to appeal it, which Hyland granted.
"Johnson is correct that L-meth cannot be regulated as a 'controlled substance' under chapter 961," DeSantis wrote. "But that has nothing to do with the definition of methamphetamine in chapter 340 (driving) or chapter 967 (crime)."
Chapter 961's exemption provision
does not suggest that L-meth cannot be regulated as a restricted controlled substance under other statutory sections. Alcohol, for example, is a nonnarcotic that can be lawfully sold over the counter (and therefore cannot be regulated under chapter 961), but it of course can be regulated in a whole host of other ways.
***
The circuit court concluded that it would be “illogical” for L-meth to be a “restricted controlled substance” without being able to be regulated as a “controlled substance” under chapter 961. But it is not illogical — the two definitions just serve different purposes. “Controlled substances” are substances whose manufacture, distribution, possession, etc., are prohibited or regulated for health and safety reasons due to their potential for harm and abuse. This protects the health and general welfare of the public.
A “restricted controlled substance,” on the other hand, has to do with the specific issue of operating a motor vehicle. The purpose of this definition is to “encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant. ...”
Given the aforementioned difficulties in testing for D-meth vs. L-meth, a contrary interpretation would make it extremely difficult to charge either type of methamphetamine as a restricted controlled substance, thwarting the statute’s purpose.
Johnson also made due process and equal protection constitutional claims, which Hyland did not rule on. If the appeals court considers them, it should reject them, De Santis said.
Johnson failed to sufficiently plead his challenges, DeSantis said. At any rate, he said, L-meth also can increase heart and breathing rates and induce "global intoxication" and other drug effects.
"L-meth has even produced similar peak subjective effects to D-meth, although L-meth’s effects did not last as long," he said.
DeSantis did not provide the dosage needed to induce those changes.
The classification of L-meth as a restricted controlled substance easily clears the low bar of having a rational relationship to a legitimate government interest. The government has a legitimate interest in roadway safety and in protecting the roads from impaired drivers. ...
Classifying L-meth as a restricted controlled substance is rational due to the extreme danger caused by driving after consuming D-meth, combined with the difficulty in distinguishing between D-meth and L-meth. Therefore, a general prohibition on driving with methamphetamine in the blood serves the legitimate government objective of preventing and effectively prosecuting driving with the highly impairing substance D-meth in one’s blood.
***
Johnson might argue that by including L-meth as a restricted controlled substance, the law is broader than is strictly necessary because it covers some individuals who have consumed L-meth but are not necessarily intoxicated. However, rational basis review does not require a statute to be narrowly tailored to serve the government objective in question. It is true that if the goal is to prevent driving while under the influence of D-meth, then (the state's driving and criminal procedure statutes) may not may not be narrowly tailored to meet that goal. But there is nothing constitutionally wrong with that.
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